The Texas Supreme Court is frequently pilloried for its unwavering support of employers, but Friday's decision, Little v. Texas Department of Criminal Justice (10/15/04) [pdf], written by the soon to be departed Justice Steven Smith differs from that path. Reviewing a summary judgment granted by the trial court and upheld by court of appeals to an employer who argued that an amputee was not disabled as the term was defined under the Texas Labor Code, the Supreme Court held otherwise.

Tracking the evolution of a disability claim under the Texas state anti-discrimination statute, the Court finds that "disability" now should be interpreted as that term is used in the ADA. In Little , although the plaintiff had a prosthetic leg, she still walked with a limp. Basically, the Supreme Court held that "the summary judgment record reflects that, at the time of the adverse employment actions of which she complains, she was significantly restricted as to the manner in which she could walk compared to the manner in which the average person in the general population could walk." Given that reading of the record, it is not new law that she should defeat summary judgment. That she prevailed in the Texas Supreme Court, after two lower courts held otherwise, is something that no doubt will catch many, on both sides of the docket, by surprise.